Judge Orders Mental Tests For Lemak

Entering Of Plea Is Postponed

March 30, 1999|By Janan Hanna and Art Barnum, Tribune Staff Writers.

A DuPage County judge Monday ordered a visibly distraught Marilyn Lemak to undergo a psychological evaluation to determine whether she is fit to stand trial on murder charges in the slayings of her three children.

DuPage County Circuit Judge George Bakalis also ordered separate psychological evaluations to determine whether Lemak, 41, of Naperville was sane at the time of the slayings of Nicholas, 7; Emily, 6; and Thomas, 3.

While in court Lemak shook and twitched at times, but she tentatively walked on her own. In three previous court appearances, she had used a wheelchair.

Wearing a two-piece dark-blue prison uniform and white tennis shoes, Lemak began to cry when she was led into the courtroom and seated to one side while waiting for her case to be called.

She frequently stretched her manacled hands up to her eyes to wipe them. Her sobs were heard by court spectators, who filled the three long rows of the courtroom.

Lemak's mother, father, two sisters, mother-in-law and father-in-law sat in separate rows in the back of the courtroom as Bakalis explained the complicated psychological and legal course that the case will follow.

Although Lemak's estranged husband, David, a physician, was not present in court, his father, Albert, was. He patted Marilyn Lemak's father on the shoulder as he entered the courtroom. None of the family members would comment after the court hearing.

"They're here for support," Marilyn Lemak's lawyer, John Donahue, said of her family.

Once the proceeding began, Lemak moved to the defense table and sat next to Donahue, who occasionally patted her on the back. Lemak sat impassively once the judge began talking, showing no reaction.

Lemak was arrested March 5 after her children were found slain in her Naperville home. Prosecutors allege that Lemak sedated the children and then suffocated them.

Bakalis said there were several factors contributing to his belief that there is a question about Lemak's fitness to stand trial: She has been on suicide watch since her arrest; she is on psychotropic, or mood-altering, medication; and her lawyer has reported that she has been catatonic and non-communicative at times.

Under Illinois law, defendants are fit to stand trial if they understand the nature of the charges and legal proceedings, and if they can assist their lawyers in preparing a defense.

If after hearing from experts, Bakalis or a jury determines that Lemak is unfit to stand trial, she could be placed in a mental hospital for up to a year and treated until she is fit. At that point she would stand trial.

If she is still not fit after a year, Illinois law allows for a hearing in which prosecutors would have to prove beyond a reasonable doubt that she is "not innocent."

If the prosecution prevails at that stage, she could be held for up to five years in a state mental hospital and evaluated again. That process can be repeated indefinitely.

"There are some cases where people are never fit," Donahue said.

Prosecutors had asked Bakalis for permission to appoint their own experts to evaluate Lemak.

Instead, Bakalis appointed Dr. Syed Ali of Wheaton to evaluate Lemak for fitness.

And he granted the prosecution's choice of two experts, Dr. James Cavanaugh and Orest Wasilyw of the Isaac Ray Center in Chicago, to evaluate whether Lemak was sane at the time of the killings, with one important condition: Neither the prosecution nor defense will be permitted to know anything about the doctors' findings unless Lemak asserts an insanity defense.

Although Lemak was expected to enter a plea on the murder charges Monday, Bakalis postponed the arraignment until the fitness exams are completed, which is expected to take at least 30 days.

But he ordered the parties back in court in a week for a status hearing.

Donahue would not speculate Monday about whether Lemak would plead "not guilty by reason of insanity" if she is found fit to stand trial.

The insanity defense has been watered down over the years by legislation, experts say.

Under Illinois law, a defendant is considered legally insane, and therefore not criminally responsible for his actions, if because of a "mental disease or mental defect, he lacks the capacity to appreciate the criminality of his conduct."

In short, a person can be acquitted if he can prove that he did not know what he was doing was wrong at the time of the alleged offense.

A defendant acquitted because of insanity can be ordered to a mental institution for as long as he would have been held in prison if convicted, up to life, according to the law.

Donahue said that two experts hired by the defense, Dr. Lyle Rossiter, a psychiatrist, and Dr. Ruth Bouton-Kuncel, a psychologist, have raised questions about Lemak's fitness to stand trial. Under the judge's ruling, Rossiter will be permitted to conduct a fitness evaluation.

Donahue said he would not disclose any of his own conclusions about Lemak's fitness or sanity.

Michael Wolfe, DuPage County's chief criminal prosecutor, said he would wait for the results of the fitness exams before charting the prosecution's course.

"We have no opinion, right now, on her fitness and we will wait for the reports to be done," Wolfe said.

Several close friends of the Lemak family announced Monday that a memorial fund has been set up in honor of the three slain Naperville children.